"commercially exploit" means to sell, lease, offer or exhibit for sale or lease, or otherwise distribute for a commercial purpose;

"filing date" «date de dépôt»

"filing date", in respect of an application for registration of a topography, means the filing date of the application as determined in accordance with section 17;

"integrated circuit product" «circuit intégré»

"integrated circuit product" means a product, in a final or intermediate form, that is intended to perform an electronic function and in which the elements, at least one of which is an active element, and some or all of the interconnections, are integrally formed in or on, or both in and on, a piece of material;

"Minister" «ministre»

"Minister" means the Minister of Industry;

"national" «ressortissant»

"national", in respect of a country, includes an individual who is a citizen or resident of, or is domiciled in, that country;

"prescribed" Version anglaise seulement

"prescribed" means prescribed by regulations;

"register" «registre»

"register" means the register kept pursuant to section 15;

"registered topography" «topographie enregistrée»

"registered topography" means a topography that is registered under this Act;

(2) For the purposes of this Act, where an integrated circuit product forms part of an article that is imported or commercially exploited, the integrated circuit product shall be deemed to be imported or commercially exploited, as the case may be.

(3) For the purposes of this Act, a topography is first commercially exploited when the topography or a substantial part thereof, or an integrated circuit product that incorporates the topography or a substantial part thereof, is commercially exploited for the first time in any place in the world by or with the consent of the person who owns the right to so commercially exploit the topography at that time and in that place.

(4) For the purposes of this Act, where a topography is created in the course of employment or pursuant to a contract, the employer or party to the contract for whom the topography was created shall be deemed to be the creator of the topography unless the employer and employee or the parties to the contract, as the case may be, otherwise agree.

3. (1) Subject to this Act, the registration of a topography under this Act, unless shown to be invalid, gives to the creator of the topography or, where the topography has been transferred, the successor in title thereto, an exclusive right in the topography for the duration of the period referred to in section 5.

4. (1) Subject to subsection (4), a topography is registrable under this Act only if the following conditions are met:

(a) the topography is original;

(b) an application for registration of the topography, containing the information and material required by subsection 16(2) and accompanied by the fee required by subsection 16(3), is filed with the Registrar before the topography is first commercially exploited or within two years thereafter; and

(c) the creator of the topography is, at the time of its creation or on the filing date of the application,

(i) a national of Canada or an individual or legal entity that has in Canada a real and effective establishment for the creation of topographies or the manufacture of integrated circuit products,

(ii) a national of a country that, either directly or through its membership in an intergovernmental organization, affords protection for topographies in accordance with a convention or treaty to which that country or intergovernmental organization and Canada are contracting parties, or an individual or legal entity that has in such a country or in the territory of a member state of such an intergovernmental organization an establishment of the kind referred to in subparagraph (i),

(iii) a national of a country or of a member state of an intergovernmental organization that the Minister has certified by notice published in the Canada Gazette to be a country or intergovernmental organization that confers protection on nationals of Canada or legal entities that have an establishment of the kind referred to in subparagraph (i) that is substantially equal to the protection conferred by this Act, or an individual or legal entity that has in such a country or in the territory of a member state of such an intergovernmental organization an establishment of that kind, or

(3) Where a topography consists of a combination of elements or interconnections that are commonplace among creators of topographies or manufacturers of integrated circuit products, the topography shall be considered to be original only if the combination, considered as a whole, meets the conditions referred to in subsection (2).

5. The exclusive right in a registered topography shall subsist for a period

(a) commencing on the filing date of the application for registration of the topography; and

(b) terminating at the end of the tenth calendar year after the earlier of the calendar year in which the topography is first commercially exploited and the calendar year of the filing date of the application.

(2) Notwithstanding subsection (1), it is not an infringement of the exclusive right in a registered topography for any person

(a) to do any act referred to in paragraph 3(2)(a) or (b) in relation to that registered topography for the sole purpose of analysis or evaluation or of research or teaching with respect to topographies;

(b) to do any act referred to in subsection 3(2) in relation to another topography that is created on the basis of the analysis, evaluation or research referred to in paragraph (a) and that is original within the meaning of subsection 4(2) or (3);

(c) to do any act referred to in paragraph 3(2)(c) in relation to a particular integrated circuit product that incorporates that registered topography or a substantial part thereof, at any time after the time at which that particular integrated circuit product is sold in any place by or with the consent of the person who owned the right to sell that registered topography at that time and in that place;

(d) to do any act referred to in subsection 3(2) where that act is done for a private and non-commercial purpose; or

(e) to bring an integrated circuit product that incorporates that registered topography or a substantial part thereof temporarily into Canada if that integrated circuit product forms part of a vehicle, vessel, aircraft or spacecraft registered in a country other than Canada that enters Canada temporarily or accidentally and is used for a purpose that is necessary or ancillary to that vehicle, vessel, aircraft or spacecraft.

(3) For greater certainty, it is not an infringement of the exclusive right in a registered topography for any person to do any act referred to in subsection 3(2) in relation to another topography that is independently created.

7.1 (1) Subject to section 7.2, the Commissioner may, on application by the Government of Canada or the government of a province, authorize the public non-commercial use of a registered topography by that government.

(2) Subject to section 7.2, the use of the registered topography may be authorized for such purpose, for such period and on such other terms as the Commissioner considers expedient, but the Commissioner shall settle those terms in accordance with the following principles:

(a) the scope and duration of the use shall be limited to the purpose for which the use is authorized;

(b) the use authorized shall be non-exclusive; and

(c) any use shall be authorized predominantly to supply the domestic market.

(4) Where the use of the registered topography is authorized, the authorized user shall pay to the owner of the registered topography such amount as the Commissioner considers to be adequate remuneration in the circumstances, taking into account the economic value of the authorization.

(5) The Commissioner may, on application by the owner of the registered topography and after giving all concerned parties an opportunity to be heard, terminate the authorization if the Commissioner is satisfied that the circumstances that led to the granting of the authorization have ceased to exist and are unlikely to recur, subject to such conditions as the Commissioner deems appropriate to protect the legitimate interests of the authorized user.

7.4 (1) The Governor in Council may make regulations for the purpose of implementing, in relation to registered topographies, paragraph 2 of Article 37 of the Agreement on Trade-related Aspects of Intellectual Property Rights set out in Annex 1C to the WTO Agreement.

8. (1) An action for infringement of the exclusive right in a registered topography may be brought in any court of competent jurisdiction by the owner of the registered topography or by a licensee of any right therein, subject to any agreement between the licensee and the owner.

9. In an action for infringement of the exclusive right in a registered topography, a court of competent jurisdiction may make such orders as the circumstances require, including orders providing for relief by way of injunction, the payment of royalties and the recovery of damages or profits, for punitive damages, and for the disposal of any infringing integrated circuit product or any article of which an infringing integrated circuit product forms a part.

10. Where the exclusive right in a registered topography is infringed by reason of the commercial exploitation or importation of an integrated circuit product that incorporates the registered topography or a substantial part thereof and the defendant in an action for infringement establishes that, at the time the defendant acquired the integrated circuit product, the defendant did not know and had no reasonable grounds to believe that the integrated circuit product was manufactured and sold for the first time without the consent of the owner of the registered topography, the defendant

(a) is not liable for royalties, damages, profits or punitive damages in respect of any dealings with the integrated circuit product prior to the time when the defendant had actual knowledge that the product was manufactured and sold for the first time without the consent of the owner; and

(b) shall have the right to dispose of any inventory of the integrated circuit product or of the article of which the integrated circuit product forms a part that was acquired before the defendant had that knowledge, subject to the condition that the defendant pay a reasonable royalty in respect of that inventory in such amount and at such time as the court may determine.

11. (1) Where an integrated circuit product that incorporates a registered topography or a substantial part thereof is commercially exploited in Canada by or with the consent of the owner of the registered topography and an action for infringement is commenced in respect of an act of infringement committed after that commercial exploitation, the plaintiff is not entitled to any relief under section 9 other than by way of an injunction if the defendant establishes that, at the time of the infringement, the defendant was not aware and had no reasonable grounds to suspect that the topography was registered.

(2) Subsection (1) does not apply if the plaintiff establishes that all or substantially all of the integrated circuit products that were commercially exploited in Canada by or with the consent of the owner of the registered topography before the infringement, or all or substantially all of the containers housing those integrated circuit products, were visibly marked with a title of the topography that is substantially the same as a title thereof that, at the time of the infringement, appeared on the register.

12. (1) Subject to subsection (2), no royalties, damages, profits or punitive damages may be awarded for any act of infringement committed more than three years before the commencement of the action for infringement.

(2) The limitation period described in subsection (1) does not apply if

(a) the infringement is of such a nature that, at the time of its commission, it would not have come to the attention of a reasonably diligent owner or licensee of any right in the registered topography; and

(b) the action for infringement is commenced within three years after the infringement came or should have come to the attention of the plaintiff.

13. If any person has relied to the detriment of that person on any entry in the register as it read before being expunged or amended pursuant to this Act or any other Act of Parliament, a court of competent jurisdiction may order that the expungement or amendment not apply in any action for infringement of the exclusive right in a registered topography taken against that person or against any other person who has acquired from that person an integrated circuit product that incorporates the topography or a substantial part thereof.

14. (1) Where it is made to appear to a court of competent jurisdiction that an integrated circuit product has been imported into Canada or is about to be commercially exploited in Canada contrary to this Act, the court may make an order for the interim detention of the integrated circuit product or any article of which the integrated circuit product forms a part, pending a final determination of the legality of the importation or commercial exploitation in an action commenced within such time as is specified in the order.

(2) Before an order is made under subsection (1), the plaintiff or petitioner may be required to furnish security, in such form and in such amount as the court may determine, to answer any damages that may by reason of the order be sustained by the owner or consignee of the integrated circuit product or article and for any costs of storage or amount that may become chargeable against the integrated circuit product or article while it remains in detention under the order.

(3) Subject to paragraph (4)(c), the plaintiff or petitioner in an action referred to in subsection (1) shall be liable to indemnify Her Majesty in right of Canada against any liability or expense that may result from the detention of an integrated circuit product or article pursuant to any order made under subsection (1), whether or not security is furnished pursuant to subsection (2).

(4) Where, by the judgment in an action referred to in subsection (1) that finally determines the legality of the importation or commercial exploitation of the integrated circuit product, the court finds that the importation is or the commercial exploitation would be contrary to this Act,

(a) any lien for charges against the integrated circuit product or article that arose prior to the date of an order made under subsection (1) has effect only so far as may be consistent with the due execution of the judgment;

(b) the court may make any order for the disposal of the integrated circuit product or article, including by way of exportation, distribution or destruction, after payment has been made of any taxes or duties owing in respect thereof under any Act of Parliament; and

(c) the owner or consignee of the integrated circuit product or article thereupon becomes jointly and severally liable, with the plaintiff or petitioner, to indemnify Her Majesty in right of Canada under subsection (3).